********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
) File Number EB-04-LA-292
Jack Gerritsen )
) NAL/Acct. No. 200532900006
Bell, California ) FRN 0005240072
)
FORFEITURE ORDER
Adopted: November 30, 2005 Released:
December 2, 2005
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty-one thousand dollars
($21,000) to Jack Gerritsen (``Gerritsen''), for willful
violation of Sections 321(b) and 333 of the Communications Act of
1934, as amended ("Act").1 On January 21, 2005, the Enforcement
Bureau's Los Angeles Office issued a Notice of Apparent Liability
for Forfeiture (``NAL'') in the amount of $21,000 to Gerritsen
after determining that Gerritsen willfully and maliciously
interfered with the radio communications of a Coast Guard
Auxiliary Officer while the Auxiliary Officer attempted to use
the amateur frequencies to contact a sailing vessel in distress.
In this Order, we consider Gerritsen's arguments concerning his
authority to operate, his allegation that there was no emergency,
his denial that he caused the interference, and his inability to
pay.
II. BACKGROUND
2. On November 14, 2001, the Commission's Wireless
Telecommunications Bureau (``WTB'') set aside, on its own motion,
amateur radio station license KG6IRO, which was granted to
Gerritsen on November 7, 2001.2 Gerritsen was warned that ``you
have no authority to operate radio transmitting equipment, and
such operation would be a violation of Section 301 of the
Communications Act of 1934, as amended, 47 U.S.C. Section 301,
subjecting you to monetary penalties and imprisonment.''3 On
January 30, 2002, WTB notified Gerritsen that his amateur
application had been dismissed.4 Therefore, Gerritsen did not
hold a valid amateur license and had no authority to operate.
3. On July 16, 2004, Gerritsen was again warned by agents
from the Commission's Los Angeles Office that he did not have
authority to transmit on any amateur band and that he should
vacate all amateur frequencies. On October 29, 2004, at 11:25
a.m., the Commission's Los Angeles Office received a telephone
call from a complainant stating that she had not been able to
contact her husband on the sailing vessel (``S/V'') Elke-Marie
traveling from California to Guadalupe Island, Mexico. According
to the complainant, the S/V Elke-Marie had been traveling with a
companion vessel, the S/V Drummoral, and both had encountered a
storm on the evening of October 25, 2004. The storm had damaged
the S/V Elke-Marie, rendering the ship's VHF marine radio
inoperable. The amateur radio was the only operational
transmitter aboard the vessel as the S/V Elke-Marie turned around
and sailed back towards Catalina Island. The complainant stated
that when she contacted Coast Guard Los Angeles Group to report
she had not heard from her husband in two days, the U.S. Coast
Guard Operations Center contacted a U.S. Coast Guard Auxiliary
Officer and requested that he attempt to contact the
complainant's husband via amateur radio, to determine his need
for assistance. Information received from the Coast Guard
Auxiliary Officer (``Auxiliary Officer'') indicated that,
beginning at about 10:00 a.m. on October 29, 2004, the Auxiliary
Officer came up on the Catalina Island Amateur Repeater
Association (``CARA'') repeater on Catalina Island, California,
transmitting on 147.090/147.690 MHz, and requested that all
stations stand by while he attempted to contact the S/V Elke-
Marie on behalf of the Coast Guard.5 Shortly thereafter,
according to the Auxiliary Officer and the complainant, Gerritsen
began speaking and transmitting a prerecorded message using the
CARA repeater. Throughout the transmissions, Gerritsen
repeatedly announced his cancelled amateur call sign of
``KG6IRO.'' The Auxiliary Officer announced that the channel was
being used for emergency traffic. According to the Auxiliary
Officer, each time he attempted to contact the S/V Elke-Marie,
Gerritsen played a recording or questioned the validity of the
emergency. When asked by the Auxiliary Officer to stand down,
Gerritsen stated that he did not believe there was a real
emergency and continued to transmit his messages. The Auxiliary
Officer stated to Gerritsen there was a real emergency only to be
rebuffed by Gerritsen who accused the Auxiliary Officer of
declaring a sham emergency in an attempt to ``jam'' his messages.
Gerritsen continued transmitting for approximately 40 minutes,
repeatedly playing a taped recording and ultimately ending his
transmission by stating ``If you jam me, I'll jam you.''
4. On October 29, 2004 at approximately 11:35 a.m., Los
Angeles Office agents approached Gerritsen's residence at 6217 ½
Palm Avenue, Bell, California. The agents located the source of
a signal on 147.690 MHz, the input frequency to the CARA
repeater, to Gerritsen's residence. After several failed
attempts to have Gerritsen answer the door, one of the agents
called Gerritsen's residential telephone using his cellular
telephone. The call was answered by someone in the residence who
would not speak. The Los Angeles agent then requested a face to
face interview with Gerritsen. Shortly thereafter the phone line
went dead. Subsequent attempts to reach Gerritsen over the phone
resulted in busy signals.
5. On October 29, 2004, at approximately 4:38 p.m., Los
Angeles agents returned to Gerritsen's residence. Using mobile
direction finding techniques, the agents located the source of a
signal on 147.8117 MHz, which identified as ``KG6IRO,'' using a
different amateur repeater, to Gerritsen's residence at 6217 ½
Palm Avenue, Bell, California. As the agents approached the
front door to Gerritsen's residence they heard a male voice
coming from inside the residence which synchronized with the
voice heard on the agents' handheld scanner tuned to 147.810 MHz.
The voice was familiar to the agents as Gerritsen's voice. No
one answered the door. The agents called out loudly to Gerritsen
through the door and requested information concerning Gerritsen's
involvement in a Coast Guard rescue earlier that day. The agents
also requested an inspection and an interview. There was no
response to the requests.
6. On November 3, 2004, the Commission's Los Angeles
Office received information from the President of CARA, who
reported that he had monitored and recorded the communications
between Gerritsen and the Coast Guard Auxiliary Officer on
October 29, 2004. The recording reveals that for approximately
40 minutes, Gerritsen is speaking and playing a recorded message
while the Auxiliary Officer and the complainant urge him to cease
transmissions and vacate the frequency because of the emergency.
7. On January 21, 2005, the Commission's Los Angeles
Office issued a NAL in the amount of $21,000 to Gerritsen.6 In
the NAL, the Los Angeles Office found that Gerritsen apparently
willfully and maliciously caused interference to the radio
communications of the Coast Guard Auxiliary Officer, who was
attempting to communicate with a ship in distress. Gerritsen
filed a response to the NAL on February 16, 2005 (``Response'').
In his Response, Gerritsen ``denies those activities alleged
against [him] that if true would be illegal.'' Gerritsen argues
that his amateur license has not been suspended, terminated,
revoked, modified or set aside; that no emergency existed; that
he did not transmit for approximately 40 minutes;7 that he did
not jam or interfere with any emergency communication; and that
he does not have sufficient income to pay the forfeiture amount
proposed in the NAL.8
III. DISCUSSION
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,9 Section
1.80 of the Rules,10 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.11 In examining
Gerritsen's Response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the violator,
the degree of culpability, any history of prior offenses, ability
to pay, and other such matters as justice may require.12
9. Section 333 of the Act states that no person shall
willfully or maliciously interfere with, or cause interference
to, any radio communications of any station licensed or
authorized by or under this Act or operated by the United States
Government. The legislative history for Section 333 identifies
willful and malicious interference as ``intentional jamming,
deliberate transmission on top of the transmissions of authorized
users already using specific frequencies in order to obstruct
their communications, repeated interruptions, and the use and
transmission of whistles, tapes, records, or other types of
noisemaking devices to interfere with the communications or radio
signals of other stations.''13 One hallmark of willful and
malicious interference in the Amateur Radio Service is the
refusal by an operator to allow any other operator to talk.14
10. Section 321(b) of the Act states that ``[a]ll radio
stations, including Government stations and stations on board
foreign vessels when within the territorial waters of the United
States, shall give absolute priority to radio communications or
signals relating to ships in distress; shall cease all sending on
frequencies which will interfere with hearing a radio
communication or signal of distress, and, except when engaged in
answering or aiding the ship in distress, shall refrain from
sending any radio communications or signals until there is
assurance that no interference will be caused with the radio
communications or signals relating thereto, and shall assist the
vessel in distress, so far as possible, by complying with its
instructions.''15
11. We first address Gerritsen's argument that his amateur
license was not set aside. As explained above, Gerritsen's
amateur radio license KG6IRO was set aside by the Commission on
November 14, 2001. His amateur license application was then
dismissed on January 30, 2002. Gerritsen does not hold a valid
amateur license. Gerritsen has been warned in writing by
Commission staff and in person, by Los Angeles agents, that he
has no authorization to use the amateur radio frequencies.16
Therefore, this argument has no merit.
12. Next, we consider Gerritsen's argument that no
emergency existed. Gerritsen puts forth various allegations that
there was no emergency; that there was no rescue; that the
complainant could not have known that the S/V Elke-Marie's VHF
Marine radio was inoperable unless she had been in contact with
the ship; that the S/V Elke-Marie was not actually in distress;17
that the S/V Elke-Marie and the Coast Guard Auxiliary Officer did
not have to use a particular radio frequency; that there was no
need for assistance; that he could have given the same assistance
the Auxiliary Officer gave; and that there are specific radio
frequencies for emergencies to be used by amateurs and the Coast
Guard. We find all of these arguments to be irrelevant. The
requirement put forth by Congress in Section 321 is not
subjective, nor is it open to debate. Section 321 clearly
requires all radio stations to give absolute priority to radio
communications or signals relating to ships in distress and to
cease all sending on frequencies which will interfere with
hearing a radio communication or signal in distress, except when
engaged in answering or aiding the ship in distress.18
Additionally, radio stations shall refrain from sending any radio
communications or signals until there is assurance that no
interference will be caused with the radio communications or
signals relating to the ship on distress.19
13. While there is no requirement in Section 321 that the
Coast Guard make the determination that a ship is in distress, we
find that a Coast Guard Auxiliary Officer is uniquely qualified
to make such a determination. On October 29, 2004, such a
determination was made and the Auxiliary Officer attempted to
clear 147.090/147.690 MHz to aid a ship in distress near Catalina
Island. Upon receiving the complaint on October 29, 2004, Los
Angeles agents immediately located the source of a signal on
147.690 MHz, the input frequency of the CARA repeater, to
Gerritsen's residence. A review of the recording of the incident
made by the President of the CARA shows Gerritsen transmitting on
the repeater for approximately 40 minutes, refusing to give
priority to communications relating to the ship in distress.20
The recording also shows that Gerritsen made no attempt to aid or
to communicate assistance to the ship in distress, the Auxiliary
Officer, or the complainant.
14. Gerritsen denies that he interfered with any emergency
communication or refused to allow any other operator to talk
during the emergency described above. However, other than his
denial, Gerritsen supplies no evidence to refute the
allegations.21 Gerritsen admits transmitting on the CARA
repeater on October 29, 2004. 22 He also admits hearing
transmissions from the Auxiliary Officer.23 The Los Angeles
Office's evidence, including the recording from the CARA
president, shows that Gerritsen failed to clear the channel and
continued to transmit. The evidence also shows that Gerritsen
repeatedly interrupted the transmissions of the Auxiliary
Officer, as the Officer tried to clear the channel and make
contact with the ship in distress. Given the context of the
communications, these interruptions constituted willful and
malicious interference under Section 333.
15. Finally, we address Gerritsen's claim that he is unable
to pay the proposed forfeiture. Specifically, Gerritsen states
that he did not file any tax returns for the most recent three
year period because his income was insufficient to require a tax
return. We note that in the NAL, the Los Angeles Office
instructed Gerritsen, if he sought cancellation or reduction of
the forfeiture, to supply:
(1) federal tax returns for the most recent three-year
period; (2) financial statements prepared according to
generally accepted accounting practices ("GAAP"); or (3)
some other reliable and objective documentation that
accurately reflects the petitioner's current financial
status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the
financial documentation submitted.24
Gerritsen submitted no documentation that reflects his current
financial status. Therefore, he has provided us with no basis to
support cancellation or reduction of the forfeiture based on his
inability to pay.25
16. We have examined Gerritsen's Response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Forfeiture Policy Statement. As a result of our review, we
conclude that Gerritsen willfully violated Sections 321(b) and
333 of the Act. Considering the entire record and the factors
listed above, we find that neither reduction or cancellation of
the proposed $21,000 forfeiture is warranted
IV. ORDERING CLAUSES
17. ACCORDINGLY, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
(``Act''), and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules, Jack Gerritsen IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $21,000 for willfully violating
Sections 321(b) and 333 of the Act.26
18. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.27 Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911- 6106. Requests for full payment under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, Room 1A625, 445 12th Street, S.W.,
Washington, D.C. 20554.28
19. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class Mail and Certified Mail Return
Receipt Requested to Jack Gerritsen at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
_________________________
147 U.S.C. §§ 321(b), 333.
2The action was taken pursuant to Section 1.113(a) of the Rules
which states that ``within 30 days after public notice has been
given of any action taken pursuant to delegated authority, the
person, panel, or board taking the action may modify or set it
aside on its own motion.'' 47 C.F.R. § 1.113(a).
3See November 21, 2001, letter from W. Riley Hollingsworth,
Special Counsel, Enforcement Bureau, Federal Communications
Commission, to Mr. Jack Gerritsen (``Enforcement Bureau
Letter'').
4See Notice Of Dismissal, dated January 30, 2002 (``Dismissal
Notice'').
5During the emergency communications, the Auxiliary Officer
identified himself as ``W1HIJ'' and ``U.S. Coast Guard Auxiliary
Upland Radio One.'' The complainant identified herself as
``N6LNX.'' According to Commission records, both are authorized
amateur licensees.
6Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532900006 (Enf. Bur., Western Region, Los Angeles Office,
released January 21, 2005). Based on the criteria in Section
503(b)(2)(D) of the Act, and the upward adjustment criteria in
the Forfeiture Policy Statement, the Los Angeles Office found
that an upward adjustment of the base forfeiture amount of $7,000
was warranted. The Los Angeles Office determined that
Gerritsen's apparent willful and malicious interference with the
radio communications of the Coast Guard Auxiliary Officer, who
was attempting to communicate with a ship in distress, was
egregious. Specifically, the Los Angeles Office determined that
Gerritsen knowingly operated, without a license, radio
transmission equipment and, on October 29, 2004, his unauthorized
operations interfered with emergency communications related to
aiding a ship in distress as Gerritsen continued to transmit on a
frequency that had been cleared for emergency communications,
despite repeated warnings and requests to vacate the frequency.
7Gerritsen also denies that his phone line went dead when he was
called by the Los Angeles agent because when he is unable to
answer the phone, an answering machine does so. We note that, as
detailed above, someone in the house did pick up the phone when
the agent called initially on October 29, 2004. It was only
after that person refused to respond to the agent's request for
an interview with Gerritsen that the phone line went dead.
8Gerritsen also incorporates, by reference, his responses to
other NAL's issued against him. To the extent those responses
are relevant, we consider them in this Order.
947 U.S.C. § 503(b).
1047 C.F.R. § 1.80.
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
1247 U.S.C. § 503(b)(2)(D).
13H.R. Rep. No. 101-316, at 13 (1989).
14U.S. v. Richard, (1998 WL 830654 (E.D. La.)). See also John B.
Genovese, 10 FCC Rcd 7594 (CIB 1995).
1547 U.S.C. § 321(b).
16See Enforcement Bureau Letter, Dismissal Notice, supra.
17Gerritsen also states that the only communications that he
heard were the Auxiliary Officer's announcement ``which was not
interfered with or interrupted,'' according to Gerritsen, and a
report of a precise longitudinal and latitudinal location.
18See, e.g., Establishment of Policies and Services Rules for the
Mobile Satellite Service in the 2 GHz Band, 14 FCC Rcd 4843,
4885 (1999).
1947 U.S.C. § 321(b).
20Gerritsen demands that a copy of this recording be made
available to him. We note that such requests are governed by the
Commission's procedures concerning Freedom of Information Act
(``FOIA'') requests. These procedures are found in Sections
0.441 - 0.470 of the Rules. 47 C.F.R. §§ 0.441 - 0.470.
21In response to a Notice of Apparent Liability, the ``respondent
will be afforded a reasonable period of time (usually 30 days
from the date of the notice) to show, in writing, why a
forfeiture penalty should not be imposed or should be reduced, or
to pay the forfeiture. Any showing as to why the forfeiture
should not be imposed or should be reduced shall include a
detailed factual statement and such documentation and affidavits
as may be pertinent.'' Section 1.80(f)(3) of the Rules. 47
C.F.R. § 1.80(f)(3).
22Gerritsen admits that he was on the CARA repeater prior to
11:00 a.m. on October 29, 2004, although he states that it was
for less than 10 minutes.
23See n. 17, supra.
24NAL at ¶ 17.
25See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 ¶ 16
(2003).
2647 U.S.C. §§ 321, 333, 503(b), 47 C.F.R. §§ 0.111, 0.311,
1.80(f)(4).
2747 U.S.C. § 504(a).
28See 47 C.F.R. § 1.1914.